Administrative law

The judgment of the Constitutional Tribunal gives the opportunity to claim compensation for wrong real estate merger

In the judgment of April 18, 2019 (reference number SK 21/17), the Constitutional Tribunal ruled on the non-compliance with the Constitution of the Republic of Poland with the provision of art. 33 section 2 of the Act of March 26, 1982 on Merging and Exchange of Lands, to the extent that this provision makes it impossible to determine the issuance of the decision on the approval of the merger project in violation of the law. As a result of the verdict issued, the aforementioned provision ceases to apply to the extent determined by the Constitutional Tribunal as of the date of its publication in the Journal of Laws.

The provision of art. 33 section 2 of the Act on Merging and Exchange of lands challenged by the Constitutional Tribunal excludes the possibility of repeal the final decisions approving the merger project in the procedure of resuming the proceedings and declaring the decision invalid, if from the day on which the decision on the approval of the project of merger or exchange of land became final, 5 years elapsed. This makes it impossible to undermine the land merger in the event of a decision with a gross violation of law (for example in violation of the local spatial development plan) or addressing decision to a non-party (for example, if the owner died or sold the property before the decision). As a consequence, the person injured by issuing the decision on the approval of the merger project is deprived of the opportunity to claim compensation from the Treasury.

The latest judgment of the Constitutional Tribunal may change this situation, enabling entities whose rights were violated in the merger proceedings to claim damages for the damage suffered as a result of the decision approving the real estate merger project. What is important, however, the judgment of the Constitutional Tribunal covers only those cases that qualify as a basis for annulment of the decisions provided for in Article 156 § 1 of the Code of Administrative Procedure. In the remaining scope, the provision of art. 33 section 2 of the Act on Merging and Exchange of lands remains in force. This means that the possibility of resuming the merging proceedings is still closed if 5 years have lapsed since the final decision.

If you want to get more information about compensation for real estate mergers, exchange, division or expropriation of real estate, please contact our Office.

Author team leader DKP Legal Marcin Kręglewski
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